Law Times

Law Times • November 23, 2009 NEWS Court of Appeal says sponsors not necessarily on the hook Immigration ruling a 'disaster for taxpayers' BY TIM SHUFELT Law Times residents will merely encourage fraud and burden the general public, says an Ottawa immi- gration lawyer. "I think this is a disaster for A taxpayers," says Julie Taub, who earlier this year represented vic- tims of marriage fraud in a class- action lawsuit against the federal government. "Th ey sign a legally binding contract. Why make an exemption for a sponsor?" Th e comments come af- ter the appeal court ordered the provincial government to change the way it attempts to recover money from those who sponsor immigrants, paving the way for debt relief and ne- gotiated settlements. Th e landmark judgment de- clared the province must stop automatically forcing residents to repay any social assistance received by sponsored fam- ily members and instead must consider individual circum- stances on a case-by-case basis. "Our decision in this mat- ter will no doubt require that Ontario revisit its policies and procedures relating to the en- forcement of sponsorship debt," read the judgment, which over- turned a Superior Court deci- sion from last year. But while Taub is critical, a lawyer who represented one of the appellants says the ruling is a big victory for people who fi nd themselves on the hook for enormous debts. "It's a strong affi rmation of the fundamental principles of administrative law," says Lorne Waldman. "Th ere has to be some compassion. Compassion is part of our legal system." Waldman's client, Nedzad Dzihic, sponsored his fi ancée in 2003, but she refused to marry or live with him after arriving, ac- cording to the court document. Immigration offi cials told Dzihic the woman would be deported, but he wasn't noti- fi ed when she successfully ap- pealed the deportation order. He later learned he could ul- timately be responsible for pay- ing back more than $100,000 in social assistance to his for- mer fi ancée over a 10-year pe- riod, Waldman says. Dzihic and seven other ap- pellants didn't dispute that they owed money to the province for defaulting on their undertakings. But they argued that fi nancial hardship and other circumstanc- es left them unable to pay. Like all immigrant sponsors, the appellants each signed un- dertakings promising to pro- vide for their family members upon arrival in Canada. Th ose agreements, which are in eff ect for a period of three to 10 years, ensure that any social assistance received by a spon- sored family member "may be Carthy_OAP Interim (LT 1-3x4).indd 1 recent Ontario Court of Appeal ruling on sponsors of permanent recovered." Th ose three words would prove crucial in the judgment. Despite the undertakings, "by 2004, almost 7,500 spon- sored relatives were on social assistance in Ontario, at a cost to the taxpayer of about $70 million annually," the judg- ment said. In that same year, the pro- vincial government established a unit within the Ministry of Community and Social Servic- es tasked with vigorously recov- ering money from sponsors. Th e ministry has since clawed back more than $13.7 million from sponsors in default of their undertak- ings. As of September, about 5,000 sponsored immigrants were receiving social assis- tance in the province, rack- ing up about $56 million in repayable debt. Except under extraordinary circumstances, such as incapaci- tation, a sponsor is required to repay the debt in full with no provision for negotiation. "Th ere is a fi rm expectation that the defaulting sponsor pursue all fi nancial resources available in order to repay the debt in full, including liquida- tion of assets and/or loans," ac- cording to ministry guidelines. Th e appellants argued that both the intention of Parlia- ment and the wording of the legislation, specifi cally the words "may be recovered," confer on the province broad discretion in determining whether to enforce sponsorship debt. Th e appeal court agreed. Lorne Waldman calls the ruling a big victory for immigrant sponsors who find themselves in financial trouble. Th e wording of the under- takings themselves gives spon- sors the expectation that before deciding to collect a debt, the government would examine individual circumstances and would consider negotiation, the judgment said. "In order to meet those expec- tations, it is necessary that Ontario 'hear' and consider the sponsors' submissions," said the decision by justices Janet Simmons, Susan Lang, and John Laskin. Th e ruling declared that the province "fettered its discre- tion" and said the federal and provincial governments owe sponsors a "duty of procedural fairness" in hearing and con- sidering their stories. Waldman notes that enforcing absolute fi nancial responsibility on all sponsors without dis- cretion ignores extenuating factors. "People lose their jobs, they have health problems," he says. "Usually, we're talking about people who are down. On top of that, they're going to get kicked when they're down." In cases of personal hard- ship, the province might garnish certain entitlements like child allowances or GST rebates, Waldman says. "People who are relying on those are in pretty dire cir- cumstances." Sponsors may also be the targets of fraud by im- migrants who use dishon- est methods to enter the country. It's simply not fair to force those victims to re- pay social assistance debts, Waldman argues. Taub, however, feels that forgiveness of sponsorship debt isn't the answer. In fact, the change will make Canada an even more likely tar- get for illegal entry, she says. "Do you know have fast this news will make it across the world? Th is will just encourage more fraud. Th e system needs a whole-scale change." Taub says marriage fraud is epidemic in Canada and blames the Immigration and Refugee Protection Act, which confers permanent-resident status immediately upon ar- rival in the country. A form of conditional or tem- porary status for a period of time would go a long way toward combatting marriage fraud, she notes, adding that until that hap- pens, taxpayers shouldn't have to foot the bill. Th e province, meanwhile, said it's reviewing the decision- but wouldn't say whether it would launch an appeal. "Sponsorship is a serious commitment, and sponsors are expected to live up to their commitments," the Ministry of Community and Social Services said in an e-mail. "We are concerned that some sponsored immigrants have to rely on social assistance because their sponsors are not meeting their support obligations." LT Marketplace SERVICES AVAILABLE PCLaw Bookkeeping services for the downtown Toronto area. Two ½ days or a single full day per week are available. Please call Rachel Nadler at Ruby & Shiller. 416-964-9664 To advertise call 905-841-6481 Announcing a special Interim Edition! Ontario Annual Practice 2010 Interim Edition Preparing you for the major amendments to the Rules of Civil Procedure PAGE 3 Major amendments to the Rules of Civil Procedure will come into effect January 1, 2010. 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• Cover
• Sponsorship Woes
• Biting Letters
• Focus On Environmental Law